This is a great question I have recently recived. It is a very common concern.
“My questions deals with a husband and wife living in Utah with 4 children - all over the age of 18. I understand that the interest in real property that is owned in “joint tenancy with rights of survivorship” transfers to the survivor when one person dies. So if the wife dies first then her interest in the property would be transferred to her husband. What happens to the property when the husband dies if there has been no will or estate planning done? Does the property get split equally between the surviving children? Does the state take possession of the property?”
Thank you for your question. This is a very common question that I have addressed to some extent in other entries. However, it is such a good example of the necessity of estate planning that it is well worth discussion.
You are correct that when husband and wife own property as joint tenants with right of survivorship the property passes to the surviving spouse without probate. Generally, you must simply record an affidavit to remove your deceased spouse from title.
Does the property get spit evenly between the children? It depends. First, as long as you have some surviving kin the state will have no claim to your real estate after death. Assuming you have no estate plan, your property will pass to heirs via a probate process. If you have a will, the probate court will distribute it to whoever you designate. Generally, if you have children, and no estate plan, the laws of intestate succession will provide that your property be evenly divided between your children.
The process of getting the property to your proper heirs will generally be easier with proper estate planning. Contact an estate planner.
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